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10 Things You Might Have Thought Were in the Constitution

Aug 01, 2016

America is suddenly very interested in what's in the U.S. Constitution.

After the father of a fallen Army captain brandished a pocket copy of the Constitution at the Democratic national convention, sales on Amazon surged.

But all these new constitutional readers might be surprised to learn what's actually in America's founding document. Or rather, what's not.

Here are 10 things you might have thought were in the Constitution that aren't.

The right to privacy. The word "privacy" does not appear anyone in the Constitution. The concept developed mainly from of the Supreme Court's interpretation of the Fourth Amendment, which protects against "unreasonable search and seizures," and has subsequently become the central argument in several landmark court decisions, including Roe v. Wade.

The right to a jury of your peers. T he Constitution guarantees the right to a trial by jury (Article III, Section 2) that is “impartial” (the Sixth Amendment), but makes no mention of peers.

Political parties. The Constitution does not mention parties or assign them any official responsibilities in government.

The filibuster. The long-standing policy of unlimited debate in the Senate, which now effectively means a bill needs 60 votes to pass instead of 50, is a matter of internal Senate procedure.

The separation of church and state. The Constitution prohibits the establishment of a national religion or religious tests for lawmakers, but does not explicitly lay out the concept that religion and governance should be, as they say, non-overlapping magisteria. The phrase "separation of church and state" comes from a letter Thomas Jefferson wrote to the Danbury Baptist association in 1802, in which he expressed support for the idea.

Judicial review. The concept of judicial review is a product of the 1803 Supreme Court case Marbury v. Madison, in which the court established its own role as the arbiter of the constitutionality of legislation. “Chief Justice John Marshall basically created a court to his liking,” says George Washington University legal scholar Jonathan Turley, noting that the Framers did not necessarily intend for the court to have such authority.

The size of the Supreme Court. Article III, which establishes the Supreme Court, says nothing about how many members it should have.

Executive privilege. Article II, which enumerates the President's authority, does not mention any protections against congressional subpoenas or other such immunities.

The right to remain silent. This famous opening line to the Miranda warning is not enshrined in the founding document (nor is the requirement that a person be read his or her rights in the first place), but is rather an extension of the Fifth Amendment right against self-incrimination.

The pursuit of happiness. That's in the Declaration of Independence.

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